Vydia Pottayya v. Unica Insurance Inc., 2021 CanLII 13195

Citation: Pottayya vs. Unica Insurance Inc., 2021 ONLAT 19-013324/AABS

Released: January 29, 2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Vydia Pottayya Applicant

and

Unica Insurance Inc. Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Vydia Pottayya, Applicant Yasar Saffie, Counsel

For the Respondent: Unica Insurance Inc., Representative Dominic Nicassio, Counsel

HEARD By way of written submissions

OVERVIEW

1Vydia Pottayya was injured in an accident on October 7, 2019, and sought various benefits from the respondent, Unica, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Unica denied the benefits in dispute on the basis of its determination that her accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). Vydia Pottayya disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The issues I am asked to decide are as follows:

a. Are Vydia Pottayya’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

b. If Vydia Pottayya’s injuries are not considered predominantly minor,

i. Is the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Dr. Pilowsky as set out in a treatment and assessment plan dated November 5, 2019 and denied by on November 8, 2019, reasonable and necessary?

ii. Is Unica liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Vydia Pottayya?

iii. Is Vydia Pottayya entitled to interest on any overdue payment of benefits?

RESULT

3Vydia Pottayya has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plan in dispute is not reasonable and necessary, no interest is payable. Consequently, a s. 10 award is not appropriate.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

5Vydia Pottayya submits that as a result of the accident, she suffers from migraine, contusion of thorax, strain/sprain of hip, WAD II, severe soft tissue injuries and a concussion have caused a temporary loss of global function, as identified in the Disability Certificate. She submits that she attended for physical treatment, has to walk with the assistance of a crutch or walker and underwent several sessions with a psychologist. In addition, Vydia Pottayya argues that her psychological impairments justify removal from, and treatment beyond, the MIG.

6In response, Unica submits that Vydia Pottayya has not met her burden to prove that she suffers from more than minor injuries or that she sustained an actual psychological impairment from the accident.

7I agree with Unica. Vydia Pottayya’s physical injuries are identified as minor injuries. Although Vydia Pottayya alleges that she suffered a concussion, the police report notes that she denied any loss of consciousness; the ambulance report, notes that the Glasgow Coma Score test was administered four times and Vydia Pottayya scored a 15 (the highest attainable score) each time. A CT head scan revealed no bruising or bleeding in her brain. Upon review, there is no medical evidence that supports Vydia Pottayya’s self-diagnosed concussion. Despite Vydia Pottayya’s reports of pain to her family physician and treatment provider, I find the evidence is limited in support of Vydia Pottayya’s claim that her accident-related impairments should be considered outside of the definition of minor injury under s. 3(1).

8Vydia Pottayya asserts that her psychological impairments justify removal from the MIG. As such, she relies on the notes from her treatment sessions with Dr. Pilowsky², who notes “depression, anxiety (especially at night), insomnia, avoids being a pedestrian, fear or reinjury, occasional nightmares and fatigue.” Additionally, Vydia Pottayya relies on the Disability Certificate completed by chiropractor David Gryfe, who diagnoses concussions and migraine. I place very little weight on the diagnosis of a chiropractor who is not trained to assess symptoms of concussion and migraine.

9I question the accuracy of Dr. Pilowsky’s notes as the evidence shows that the OCF-18 was submitted after a telephone interview, with no apparent review of Vydia Pottayya’s medical history. This is evident in Dr. Pilowsky’s notes where she indicates, “Vydia Pottayya was healthy before the accident”. Upon review, I note that as far back as June 2016, Vydia Pottayya’s medical history is significant for various pain complaints, notably similar to those she complained that she suffered from as a result of the accident. Similarly, Vydia Pottayya appears to have a lengthy pre-accident history dating back to January 2016, of insomnia, which she also attributes to the accident. I have no evidence that Vydia Pottayya’s pre-accident health concerns were worsened as a result of the accident, but that her pre-accident medical history appears to be relatively unchanged post-accident.

10While Unica did not rely on its own psychological report, the burden of proof ultimately lies with Vydia Pottayya In this regard, I agree with Unica that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. Notes from a treatment provider and an OCF-18 for a psychological assessment without contemporaneous reporting in the medical documentation and with no objective evidence of psychological impairment, does not, in my view, demonstrate that removal from the MIG is required.

11I find Vydia Pottayya has not presented compelling evidence that she sustained a psychological impairment as a result of the accident. First, there is no report from Dr. Pilowsky or any other treatment provider that supports Vydia Pottayya’s alleged psychological impairment. Second, there was no objective testing to obtain a formal diagnosis to determine the extent of Vydia Pottayya’s psychological symptoms. With respect, Dr. Pilowsky’s notes do not qualify as a reliable diagnosis. Despite the psychological treatment sessions with Dr. Pilowsky, family physician, Dr. Sikri has not recommended treatment or an assessment for any post-accident psychological symptoms. In fact, none of Dr. Sikri’s records contain any notes of referrals for any psychological issues. For these reasons, I find Vydia Pottayya has not demonstrated that her accident-related impairments warrant removal from the MIG.

Reasonable and Necessary

12I have determined that Vydia Pottayya has not demonstrated that removal from and treatment beyond the MIG is required. Further, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 10 Award

13Vydia Pottayya also sought an award under s. 10, submitting that the evidence; the nature of the collision, the alleged loss of consciousness, the Disability Certificate noting a self-report of a concussion and the physical treatment records noting Vydia Pottayya was depressed and passive, made the OCF-18 for a psychological assessment reasonable and necessary. In this sense, Vydia Pottayya asserts that Unica has unreasonably withheld payment of the assessment.

14Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I do not find an award is appropriate in this proceeding. As Vydia Pottayya has not demonstrated that her impairments warrant approval of an assessment beyond the MIG limit and no benefits are overdue, it follows that the Tribunal cannot award up to 50% of zero. In any event, I find no evidence that Unica unreasonably withheld or delayed the payment of benefits.

CONCLUSION

15Vydia Pottayya has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the OCF-18 in dispute is not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.

Footnotes

1. 1O. Reg. 34/10
2. 2Psychological treatment dates – December 4, 2019, January 7, 2020, May 5, 2020, June 16, 2020 and August 10, 2020.